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Article Excerpt
[W]hen the males and females of any animal have the same general habits of life, but differ in structure, colour, or ornament, such differences have been mainly caused by sexual selection....(1)
Our settled law in this circuit, however, does not support Jespersen's position that a sex-based difference in appearance standards alone, without any further showing of disparate effects, creates a prima facie case. (2)
I. INTRODUCTION: DRESSING THE PART II. WHO WEARS THE PANTS: SEX-SPECIFIC DRESS RULES IN THE WORKPLACE III. SEXUAL SELECTION AND SEXUAL DIMORPHISM IN HUMAN AND NONHUMAN ANIMALS: THE PEACOCK'S TAIL AND OTHER FANCY ACCOUTREMENTS A. The First Layer: Animal "Dress" and Sexual Selection B. Adding a Layer: Human Dress IV. IF THE SHOE FITS: SEXUAL SELECTION, SEX-BASED DRESS RULES, AND SEX DISCRIMINATION A. Sexual Dimorphism, Dress, and the Triviality Question B. Wolves, Sheep, and Clothing: Sex, Power, and Dress V. CONCLUSION
I. INTRODUCTION: DRESSING THE PART
Social norms regarding body modification, ornamentation, and covering exist in every known human society. (3) And in every known human society, such norms include gender norms: individuals are expected to adhere to certain sex-differentiated dress and grooming codes. (4) Gender differences in dress norms, in other words, appear to be universal among human societies. (5)
Likewise, sexual dimorphisms--differences in form between males and females of the same species--are a common feature of animal species. Such differences have been extensively studied by evolutionary biologists and are widely understood as adaptations caused by sexual selection. According to the most common understanding, males "dress up" in order to be chosen by picky females. (6) Thus, in the most famous example, the peacock evolved his magnificent tail because peahens disproportionately chose to mate with fancy-tailed males. And the peahen's tail is plain and drab because--to put it bluntly--the males are sufficiently promiscuous and indiscriminate that she need not waste precious biological resources making and carting around such an otherwise useless accessory. (7)
In humans, dress, broadly defined, may be viewed as in part driven by similar signaling purposes that are ultimately (8) tied to sexual selection pressures. Human dress can serve to enhance, hide, minimize, distort, highlight, or reveal physical, mental or emotional features that are potentially relevant to others in the social context. Dress therefore serves various signaling and expressive functions (9) in addition to its more mundane purposes of bodily protection and warmth. (10) Furthermore, these signals are not singular; rather, they are discursive and multiple. For example, a business suit on a man might signal status and self-restraint; (11) wearing a business suit to court conveys a willingness to conform to social dress norms; (12) wearing a business suit to the beach signals something different; (13) a woman in an identical men's suit sends yet another set of signals entirely. (14) Therefore, while the original dress feature might signal one or more of a number of behavioral or social characteristics, (15) once that signal becomes embedded in the web of social dress norms, adherence to or rejection of the signal carries an additional set of signals that bear on traits related to social conformity, risk-aversion, rebelliousness, and the like. (16)
Though social norms regarding sex differences in dress have lost much of their force in recent years as so-called "unisex" fashions and gender cross-over in certain styles of dress have become fairly common, there still exist a number of dress conventions that are identifiably "male" and "female" in American culture. Thus, for example, skirts and dresses continue to be strongly coded as female, (17) whereas ties are strongly coded as male. (18) When such sex-specific social conventions are not only performed in the workplace but are actually mandated by employers, difficult doctrinal and normative issues arise.
Courts have for years addressed challenges to employer dress codes that differentiate between men and women in conformance with widely-accepted social dress norms. (19) The outcomes of these cases, along with their reasoning and analysis, are increasingly difficult to reconcile across the spectrum of situations in which the issue arises. In rationalizing their holdings, courts have engaged in analytic contortionism of the highest degree. However, there may ultimately be no logical way to reconcile decisions that prohibit employers from requiring women to wear revealing outfits and others that permit employers to require them to wear makeup, (20) or decisions that prohibit penalizing a woman for being insufficiently feminine and others that permit penalizing a man for being insufficiently masculine. (21) In addition, the increasing judicial acceptance of the sex stereotyping theory of sex discrimination under Title VII is in substantial tension with recent cases that insist that sex-differentiated dress and grooming requirements that "merely" (22) conform to existing social gender norms do not amount to impermissible sex discrimination.
Most courts and scholars who have addressed this tension have attempted to draw lines such that some sex distinctions in dress requirements survive legal scrutiny while others fail. These approaches highlight various aspects of sex-differentiated dress rules that are seen as especially relevant or problematic. Whether the focus is upon subordination, power differentials, autonomy, freedom of expression, mutability, or the simple unfairness of being placed in an impossible Catch-22, (23) these various approaches bring into sharp relief the existence of the many strands that have become entangled in the employee dress cases.
This article proposes an analysis of employer dress codes that draws its inspiration from an examination of the reasons for sex distinctions in "dress" among nonhuman animals. Part II describes the contradictions inherent in the various lines of dress and grooming cases. This part teases apart the various doctrinal and theoretical strands to show that there are several separate elements in play, sometimes operating at cross-purposes. Part III explains the theory of sexual selection, which accounts for the striking dimorphisms in coloration, feathers, weaponry, and ornamentation among nonhuman animals. As this discussion reveals, there is a strong element of female choice and female power that is directly correlated with the type and extent of sexual dimorphisms in animals.
Part IV draws upon insights from the study of animal dress, along with the anti-caste view of Title VII, to propose a partial solution to the problem presented by the Title VII dress cases. Drawing a line that could be applied easily by courts, this Part proposes that any employer policy that requires females to be more highly decorated than males--including policies that require women to wear makeup or to wear clothes that reveal more of their bodies than the corresponding male dress requirement (24)--should be deemed to run afoul of Title VII's prohibition of discrimination because of sex. It further argues that the analogy to animal dress implies that there is no such thing as a sex-specific dress code that is de minimus (25) or that equally burdens males and females. (26)
By offering sexual selection theory as a lens through which to examine dress codes in the workplace, I do not mean to suggest that it answers every question nor that it provides normative answers (27) simply based on analogy to evolutionary explanations of ornamentation and sexual dimorphism. I do not argue, for example, that because there exist sexual dimorphisms in dress in nonhuman animals, that such differences are "natural" and therefore acceptable or desirable. (28) Nor do I wish to suggest that, because there may be some biological or evolutionary basis for sexual dimorphisms in human social dress norms, that employee grooming choices should for that reason be granted greater protection under Title VII. (29) However, an evolutionary perspective that considers the ultimate reasons (30) for sex differences in dress does help to distinguish those dress codes that should be permitted from those that should not, given the normative goals as derived from the statutory language and history or from other policy considerations. (31) By looking more deeply at why males and females--nonhuman and human alike--dress their parts, it may be possible to unravel the doctrinal strands and to begin to weave a more coherent and suitable legal fabric. (32)
II. WHO WEARS THE PANTS: SEX-SPECIFIC DRESS RULES IN THE WORKPLACE
As one might expect given the pervasiveness of social norms that differentiate appropriate female from male dress, (33) the workplace is no exception to gendered expectations regarding dress. Whether explicitly stated or as part of the background fabric that governs who is deemed to "fit in," whether embodied in formal written policies or informal understanding and practice, sex-specific norms governing what individuals may or must wear exist in many workplaces. (34) Courts have addressed such sex-differentiated (35) dress requirements in a growing body of case law in which plaintiffs have challenged such rules as unlawful sex discrimination. (36) Though both the EEOC and the courts in the early cases often viewed facially sex-differentiated appearance codes as violative of Title VII, this formal equality framework soon gave way to the view that it was perfectly appropriate--and legal--for an employer to instantiate social dress and appearance norms even where these differed according to sex. Throughout its development, this line of case law has struggled to fit within the larger doctrinal framework; however, the fit has often seemed more akin to that of an ill-suited hand-me-down than a tailor made garment. Recent sex-stereotyping cases reveal that the existing framework is in danger of splitting at the seams.
In Jespersen v. Harrah's Operating Company, the Court of Appeals for the Ninth Circuit, sitting en banc, upheld an employer-mandated appearance code that required female bartenders to wear foundation, blush, and lipstick to work, and to tease or style their hair every day, while prohibiting male bartenders from doing so. (37) It is probably fair to say that this ruling, as with the prior decisions in the case by the district court (38) and the appellate panel, (39) came as something of a surprise (40) to many scholars. It is worth asking why this would be so. The legal rules that the court applied were unremarkable in the sense that they have been established doctrine for some time. (41) And yet the application of these settled rules to the case of Darlene Jespersen, a longstanding and highly regarded employee (42) who was fired for refusing to wear makeup to work, sparked a flurry of commentary in the legal literature. (43)
Why should the outcome of this case have generated such widespread comment and consternation? One reason is that the "unequal burdens" test used by the court was first articulated" prior to the Supreme Court's landmark decision in Price Waterhouse v. Hopkins, which recognized that sex stereotyping could constitute sex discrimination under Title VII. (45) As the sex stereotyping theory of sex discrimination has gained greater judicial acceptance, (46) it has begun to push at the edges of the foundational rationales that ground the dress and grooming cases. (47) However, other cases, including some in the Ninth Circuit, have continued to apply the unequal burdens standard to employee appearance codes well after Price Waterhouse. (48) Thus, the mere fact that the Jespersen court continued to apply this test to a sex-differentiated grooming rule seems insufficient reason for the case to have generated the type and degree of notice that it has.
The presumption behind the unequal burdens test is that different treatment of men and women is not per se actionable. In essence, it is the "separate but equal" standard imported into the law of sex discrimination. (49) A comparison of the language in Jespersen to earlier decisions makes clear the essential continuity of judicial rhetoric and doctrine from the pre-Price Waterhouse cases, through the post-Price Waterhouse cases, and to the Jespersen case itself. In 1975, considering one of the several hair length cases in which male plaintiffs challenged employer policies that required male employees to wear short hair but allowed female employees to wear their hair long, the Eighth Circuit stated that:
Defendant's hair length requirement for male employees is part of a comprehensive personal grooming code applicable to all employees. While no hair length restriction is applicable to females, all employees must conform to certain standards of dress. Where, as here, such policies are reasonable and are imposed in an evenhanded manner on all employees, slight differences in the appearance requirements for males and females have only a negligible effect on employment opportunities. (50)
A decade after the Supreme Court held that Ann Hopkins had suffered sex discrimination when her employer penalized her for failing to conform to socially entrenched gender stereotypes, (51) the Ninth Circuit stated that "[a]n appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment." (52) In Jespersen, the court simply reaffirmed this standard, stating that "companies may differentiate between men and women in appearance and grooming policies" unless the policy in question "creates an 'unequal burden' for the plaintiff's gender." (53)
Perhaps, then, it was the application of the test, rather than the test itself, that was somewhat unanticipated. In Jespersen, the court refused to take judicial notice of the asserted fact that a rule requiring women to wear substantial amounts of makeup and to tease or style their hair was more burdensome than a corresponding rule requiring men to wear no makeup and to keep their hair cut short. (54) In dissent, Judge Kozinski argued that the plaintiff had raised a triable issue of fact on the issue of unequal burdens because, among other reasons, "Harrah's policy requires women to apply face powder, blush, mascara, and lipstick," and "[y]ou don't need an expert witness to figure out that such items don't grow on trees." (55) It may be that a makeup requirement such as that at issue in Jespersen seemed, as it did to Judge Kozinski and the other dissenters, so patently burdensome that the court's refusal to notice the burden came as a surprise.
Or it may be that it was not the obvious nature of the unequal burden, but the obviousness of the sex stereotyping that underlay the makeup policy that gave those watching the case pause. The Jespersen majority held that a sex-differentiated grooming policy could constitute sex discrimination in either of two ways: (1) if it unequally burdened men and women, or (2) if it reflected and enforced an impermissible sex stereotype. Thus, while the court recognized that the sex stereotyping theory of sex discrimination might apply to invalidate a workplace dress code, (56) it held that the theory did not apply to invalidate the Harrah's code at issue in Jespersen. (57)
The Jespersen court thus rested this part of its holding upon an asserted distinction between dress codes that reflect socially accepted gender appearance norms, which it found unproblematic, and those based upon impermissible sex stereotypes, which might violate Title VII. The difference between a gender norm on the one hand and an impermissible stereotype on the other was only imprecisely defined in Jespersen, but the court did offer some clues as to what sorts of sex-differentiated appearance codes would raise sex stereotyping issues. (58) These clues are significant because they are representative of the threads of analysis that run through the appearance code cases in general and that comprise the forms upon which the patterns of rhetoric in these cases have been sewn. And these themes, it turns out, raise some intriguing analogies to the animal "dress" literature.
There are three lines of cases in which female plaintiffs have had some success in challenging workplace appearance codes. First, some women have prevailed where they have demonstrated that the appearance code at issue required them to appear in sexualized or provocative clothing. (59) Second, but closely related, is a series of cases in which courts have upheld challenges to certain airline maximum weight policies. (60) Finally, some courts have found sex discrimination where women were required to wear uniforms but their male counterparts were permitted to dress in business attire. (61) Each of these pockets of judicial skepticism of sex-differentiated appearance codes finds a mirror image in the reasoning of the Jespersen opinion.
The Jespersen majority distinguished Price Waterhouse on the ground that, unlike the sex stereotyped notions applied to Ann Hopkins, those applied to Darlene Jespersen did not "single [her] out," but rather these policies "applie[d] to all of the bartenders, male and female." (62) Harrah's policy did not amount to "impermissible stereotyping," said the court, first because it was not "intended to be sexually provocative" or to "stereotype women as sex objects." (63) Were a policy to do this, the court suggested, it could amount to an impermissible sex stereotype that would violate Title VII. (64)
This focus on the stereotype of sexual attractiveness and availability--the requirement that women appear "sexy" and attractive at work--is a prominent, though at times ambivalent, underlying theme in the grooming cases. (65) In those relatively rare instances in which female plaintiffs have prevailed in challenges to workplace grooming codes, the cases have sometimes involved what a court perceives as a sexually suggestive dress requirement that is unrelated to the main purpose of the defendant's business. (66) For example, in EEOC v. Sage Realty Corporation, (67) one of the first cases to hold that an employer dress code violated Title VII, the court found in favor of a female lobby "hostess" (68) in a New York City office building who was constructively discharged because she refused to wear what the court found was a revealing and sexually provocative costume. (69)
Similarly, in Gerdom v. Continental Airlines, Inc. the plaintiff, like Darlene Jespersen, had amassed an "otherwise exemplary" employment record. (70) Nevertheless, she was fired from her position as a "flight hostess" when she exceeded the airline's maximum weight restrictions. (71) The Ninth Circuit noted that "[t]he purpose of the weight program was, according to Continental, to create the public image of an airline which offered passengers service by thin, attractive women, whom executives referred to as Continental's 'girls."' (72) Because there was no showing that slimness was necessary to perform the job of cabin attendant, and because men who performed similar functions were not subject to a maximum weight requirement, the court concluded that the sex-targeted policy smacked of "occupational cliches" and "stereotypical notions of the roles of men and women" and constituted disparate treatment sex discrimination on its face. Continental's admission that the policy's purpose was to cater to the flying public's desire to be served by sexually attractive women was a prominent factor in the court's reasoning in support of its holding that the policy was discriminatory. (73) The Jespersen court characterized the policy as "part of an overall program to create a sexual image for the airline." (74)
The other flight attendant cases in which female plaintiffs have prevailed in challenging sex-specific policies--though these were not appearance policies per se (75)--similarly involved what courts considered to be stereotypical notions of female attractiveness and sexual availability. Thus, courts have invalidated airline rules that restricted flight attendant positions to young, single, childless women, holding that policies that prevented flight attendants from being married, (76) having children, (77) or working beyond their early- to mid-thirties (78) all constituted sex discrimination in violation of Title VII. (79) In their attempts to control these particular traits of its female flight attendants, the airlines tracked very closely those traits that the sexual selection literature posits as the desirable mating characteristics of human females: youth, fertility, health, and availability. (80)
The other main hook upon which the Jespersen court hangs it hat concerns the extent to which the policy at issue interfered with the plaintiff's ability to perform her job because she was a woman. (81) In evaluating Harrah's appearance policy--which tracked a social gender norm that women are at their "Personal Best" only in makeup and with styled hair while men can achieve theirs with unadorned faces and plain hair--the Jespersen majority determined that the company did not place a burden on women's ability to perform their work. (82) In both the "Unequal Burdens" portion of its opinion, and in the "Sex Stereotyping" portion, the decision turned largely upon this intuition on the part of the court.
Dismissing the plaintiff's argument that the makeup requirement alone--because it applied differently on its face to men and women--established a prima facie case of discrimination, (83) the Jespersen court held that, though different, the grooming requirements that applied to men and women were not unequal. (84) According to the court, the makeup requirement was not burdensome to women and had "only a negligible effect on employment opportunities." (85) In an exquisite example of circular reasoning, the court insisted that "[g]rooming standards that appropriately differentiate between the genders are not facially discriminatory." (86) Because the plaintiff had offered no evidence that "the grooming standards would objectively inhibit a woman's ability to do the job," (87) she failed to demonstrate that the policy was discriminatory. This focus on the issue of job impairment is evident in those cases that have found in favor of female plaintiffs who challenged sex-differentiated dress and grooming requirements.
Apart from the sexualized appearance and flight attendant cases, female plaintiffs have also prevailed in challenging policies that required women, but not men, to wear uniforms at work. In the leading case of Carroll v. Talman Federal Savings & Loan Ass'n of Chicago, (88) the Seventh Circuit struck down such a policy because "when some employees are uniformed and others not there is a natural tendency to assume that the uniformed women have a lesser professional status than their male colleagues attired in normal business clothes." (89) Thus, the employer's stated justifications for the policy "reveal[ed] that it [was] based on offensive stereotypes prohibited by Title VII." (90) In a similar case, another court found that "it is demeaning for one sex to wear a uniform when members of the other sex holding the same positions are allowed to wear professional business attire." (91) These cases suggest that where a dress code imposes a demeaning image upon one sex only, it constitutes discrimination under Title VII.
Thus, the gender norms that are viewed by courts, explicitly or implicitly, as invidious are those that relate to female attractiveness and sexiness as well as those that relate to female competence and status. (92) This is what distinguishes "appropriate" or "reasonable" sex-differentiated dress codes from unduly burdensome ones, and benign "norms" from inappropriate "stereotypes" in these cases. The categories of cases in which female plaintiffs prevail are those where employers are seen to be attempting to enhance the attractiveness or sex appeal of female employees for a position where attractiveness should not be relevant, (93) and where female employees are compelled to wear uniforms though male employees are not. (94) In the latter context, courts reason that such policies imply to customers that the uniformed female employees are of lesser status than the non-uniformed male employees. (95) In addition, there is the patronizing suggestion that women are not capable of good judgment as to appropriate business attire because they are competitive and subject to fashion's whim. (96)
III. SEXUAL SELECTION AND SEXUAL DIMORPHISM IN HUMAN AND NONHUMAN ANIMALS: THE PEACOCK'S TAIL AND OTHER FANCY ACCOUTREMENTS
Male and female peafowl look different: Peacocks have large, unwieldy and seemingly useless tails that they drag along behind them and then occasionally, with regal pomp, fan out in a spectacular display of blues, greens, and golds as they strut in circles and shimmy and vibrate their rear-ends. Peahens, in striking contrast, have short, drably colored tails. Though peafowl present a very dramatic example of sexual dimorphism, (97) they are only one of many species of birds, mammals, fish, and even insects that exhibit obvious male-female differences in coloration, size, or ornamentation.
This Part lays the groundwork for understanding the evolutionary impetus for the sorts of showy dimorphisms in coloration and ornamentation--e.g. feathered crests or long tails, antlers, wattles, elaborate antennae that are exemplified by the peacock and peahen. It then layers onto the description of basic evolutionary theory a discussion of cultural norms that inform the human practice of ornamentation and, specifically, sex- and gender-differentiated (98) social dress norms.
A. The First Layer: Animal "Dress" and Sexual Selection
As seen in the quotation at the start of this Article, Charles Darwin recognized sexual dimorphism within species and coined the term "sexual selection" to describe the process by which many such sex differences could evolve. (99) Sexual selection, as distinct from natural selection, (100) refers to a process by which the sexes evolve particular traits, generally divergent traits, based on the differential reproductive success (101) conferred by those traits. (102) Sexual selection theory remains the primary explanation among contemporary evolutionary biologists for most intra-species sex differences. (103) Whereas natural selection can be expected to operate fairly uniformly upon members of a particular group, sexual selection can create different evolutionary pressures upon males and females in the group based largely upon the differing reproductive strategies of males and females of the species. (104)
Until the 1970's, most evolutionists accepted the idea of natural selection but ignored or disparaged Darwin's theory of sexual selection. (105) When they did recognize it as a valid explanatory model, they often viewed male competition for females--in contrast to female preference for certain traits--as the driving force behind sexual selection. (106) If larger, stronger, more aggressive, or more dominant males tended to win the contest for access to reproductive females, those traits, if heritable, would be disproportionately passed on to future generations and would become widespread in the male population. (107 Explaining sexually dimorphic traits, Darwin argued that these came about where "individual males have had, in successive generations, some slight advantage over other males whether in their weapons, defence,...
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